PUC Rules and Appellate Jurisdiction

Looking at the summaries of oral arguments heard last week, one struck my eye, so I listened in. The merits of the dispute go to the legality of the Maine PUC’s net metering rule, an issue we won’t discuss. It’s a jurisdictional issue the Commission raised, with impact beyond this particular case, which I’d like to examine here.

The PUC said that when you challenge a PUC rule as opposed to a quasi-adjudicatory determination, you can’t file a direct appeal to the Law Court under 35-A MRS § 1320. Instead, you have to file a declaratory judgment action in Superior Court under the Administrative Procedure Act, 5 M.R.S. § 8058Conservation Law Foundation v. PUC, PUC-17-185(schedule) (oral argument).

Is the PUC right? Obviously, the Court will provide the final word. If someone voted me Queen Decider, I’d say the Superior Court only has concurrent jurisdiction as to rule challenges.

Factor #1 – precedent

The Law Court has ruled on challenges to rules in section 1320 appeals in at least two cases – NET v. PUC, 1997 ME 222; and one I was involved in, CMP v. PUC, 1999 ME 119.

Factor #2 – statutory language

Section 1320(1) states that an appeal of a “final decision” may be taken to the Law Court under this statute. “Final decision” isn’t defined. Section 8058 applies generally to agency “rules,” which are distinguished not from “final decisions,” but “final agency action.” So “final agency action” is a term of art for an adjudication, but a “decision” is not. To the contrary, according to my trusty Black’s Law Dictionary says “decision” is a “popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.”

A version of section 1320 was enacted before the APA, so logically, it at least originally meant to cover all Commission determinations, whether quasi-judicial or quasi-legislative. Another reason to conclude section 1320 when enacted meant to cover both rules and quasi-adjudications is that the difference between the two could get quite squishy in the utility context.

After the APA was enacted, there’s nothing explicit in it to indicate that section 8058 was meant to alter the applicability section 1320. Conversely, however, section 1320(6) now says that the Law Court “has exclusive jurisdiction over appeals and requests for judicial review of final decisions” “with the exception of the Superior Court’s jurisdiction to review rules under Title 5, section 8058.” To me, this language suggests you can challenge a PUC rule under section 8058 – but don’t have to – you can alternatively choose to use section 1320.

Factor #3 – Legislative history  

Serendipitously, we had a copy of the legislative history of section 1320(6) rattling around our library (thank you Kami!). In that history, in 1986, a PUC staff attorney wrote a letter to the Chairs of the standing committee on utilities in the Legislature, urging them to support LD 1959, An Act to Clarify The Procedure For Appeals Of Decisions Of The Public Utilities Commission. This act did various things. The relevant point here is that the PUC, through this attorney, says that “the Law Court has exclusive jurisdiction over appeals of PUC decisions, with the single exception that the parties can contest PUC rulemaking proceedings in the Superior Court.”   The underlining is in the original; the boldface is mine.

This language to me confirms that section 1320(6) means there is concurrent jurisdiction under section 8058.